Protect yourself when the feds knock on your door

Lately, state and federal governments are increasing enforcement of health care fraud and abuse laws, especially in South Florida. Accordingly, it is important to know what to do if a state or federal official investigating a health care fraud and abuse matter involving you or your organization pays a visit.

Frequently, people have the fundamental misunderstanding that they are obligated to speak to agents, whether they are from the Florida Agency for Health Care Administration (AHCA), the Office of Inspector General of the United States Department of Health and Human Services (OIL-HAS) or the FBI.

You are not obligated to speak to these agents, and under such circumstances you should not. You have a Fifth Amendment right to refuse any interview. If an agent contacts you for an interview, respectfully decline on the advice of counsel. Further request that the agent contact your attorney. Under no circumstances make any statements regarding the government's allegations or the facts underlying its investigation.

Advise your employees on how to handle an inquiry from a government agent. Tell them they are not obligated to speak to an agent and are entitled to representation. Also inform them that the organization's attorney can assist them in such an interview, but that the attorneys' client is the business organization. Employees should be advised that they may retain their own counsel.

Do not forbid your employees to speak to government agents, as this could be construed as obstruction of justice. Merely make your employees aware of their rights. It is reasonable to request that employees tell you if they are visited by agents.

What about documents?

If an agent of the government contacts you or your office with a request to obtain documents, the nature of that request will determine the response. If an agent wishes to inspect your records without a search warrant or subpoena, instruct your employees to immediately notify you and refer the agent to your attorney. Generally, federal and state agents are allowed to inspect records supporting a claim for payment under the Medicare or Medicaid programs, but one must provide only reasonable (not immediate) access.

It also may not always be clear that a particular document "supports" a claim. If you do allow immediate access to such records (before consulting with your attorney), photocopy the documents the agent inspects or obtains. At least keep an accurate record of what documents the agent inspects or copies. In the absence of a search warrant, the agent has no right to take originals.

Also, without a subpoena or warrant, you have a Fifth Amendment right not to voluntarily provide copies of noncorporate, personal records (as opposed to records of your corporation; corporations do not enjoy Fifth Amendment privileges). If the agent demands copies of personal documents, respectfully decline and refer the agent to your attorney.

If a grand jury subpoena duces tecum is served, accept service and immediately fax a copy to your attorney. Do not give documents (or copies) to the agent at the time the subpoena is served. A subpoena for testimony or documents always has a future return date with which to comply, but not without guidance of your attorney. Again, make no statements regarding any documents, allegations or facts related to the grand jury's investigation.

When warrants are served

If an agent approaches you or your business with a search warrant, accept the warrant and immediately fax a copy to your attorney. If you are absent, instruct your employees to contact you immediately. The agent is entitled to seize only those documents that are specifically described in the warrant, including both corporate and personal records.

Accompany the agent to any search location and attempt to get copies of any seized documents, or at least a commitment from the agent that copies of the documents will be returned as soon as possible. Search warrants are issued for documents only and don't require you or your employees to either volunteer information verbally or to respond to questions by the agent conducting the search. If the agent attempts to speak with you, decline respectfully and refer the agent to your attorney.

Gabe Imperato is a partner in the Fort Lauderdale office of Broad and Cassel and a former deputy chief counsel of the U.S. Department of Health and Human Services.